Notice anything strange about this Government Accountability Office (GAO) bid protest decision? In this decision, involving a protest over the award of a Department of Defense (DoD) commissary supply contract, GAO reveals past performance information about a contractor—the kind of information DoD has refused to turn over to POGO.
Page 3 of the decision contains a chart showing what appears to be the past performance grades of the protesting and awardee contractors. Back in 2008, in response to POGO’s FOIA request for information contained in the Past Performance Information Retrieval System (PPIRS), including contractors’ “performance grades,” we were given the brush-off by DoD, which determined that the release of this data would subject contractors to the risk of being “targeted by those seeking to harm the interests of the U.S. Government.”
But it gets even better. The decision then goes on to vividly describe the past performance track record of Nayyarsons Corporation, the company that won the contract. Hold on to your stomachs:
Although this information included a number of favorable comments regarding Nayyarsons’ past performance, e-mails from several DeCA [Defense Commissary Agency] commissaries also indicated that Nayyarsons had a number of performance problems. Specifically, the evaluation team was provided with e-mails from various commissaries which reported staff and product shortages during transition periods; unsanitary conditions; employee tardiness and cleanliness; and problems with sushi, including use of expired products and pre-dating products. See, e.g., id. at 147-48 (June 25 e-mail reporting “serious problems” with sushi at Memphis commissary which “nee[d] to be addressed immediately”); 145-46 (July 15 e-mails reporting an “ongoing problem” and that “there are still significant issues” with sushi at Memphis commissary); 154 (July 18 e-mail reporting problems “once again” with sushi at Scott AFB).
As you probably know, POGO has long been urging the government to publicly release its Federal Awardee Performance and Integrity Information System (FAPIIS) database. We are currently appealing DoD’s denial of our FOIA request for FAPIIS data, which DoD claims is “source selection sensitive and therefore not publicly releasable.” Among the data included in FAPIIS are contractors’ past performance reviews—the same information provided in GAO bid protest decisions. In the meantime, the government seems to be taking its sweet time implementing section 3010 of the Supplemental Appropriations Act signed into law last July, which requires the government to post all FAPIIS data, except past performance reviews, on a publicly available website. According to an interim rule issued this week by the Obama administration, this won’t happen until at least April 15.
We have repeatedly pointed out that much of the information in FAPIIS is already in the public realm—if it weren’t, there would be no Federal Contractor Misconduct Database. Primary source documents pertaining to the administrative, civil and criminal proceedings compiled in FAPIIS can be easily obtained on the Internet: federal court pleadings from PACER, press releases from company and government websites, and corporate filings from the Security and Exchange Commission’s EDGAR website. Suspension and debarment records are posted on the Excluded Parties List System (EPLS). Last but not least, you can go to this GAO website for bid protest decisions. I just did a quick perusal of the site and found details about specific contractors’ past performance records in this one, this one, and this one.
The widespread public availability of contractor accountability information is one reason why the government’s reluctance to release FAPIIS to the public is unfounded. The Nayyarsons Corp. bid protest decision shows there may also be compelling public health and safety reasons, such as the need to know that certain government facilities may be serving tainted food.
Anybody up for sushi?